0120113630
11-07-2012
Carl E. Robbins, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Carl E. Robbins,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113630
Agency No. 11-3579A-01766
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 5, 2011, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, we AFFIRM the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee at the Agency's Program Executive Office for Command, Control, Computers, Communications and Intelligence facility in San Diego, California. On June 3, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of age (55) and in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. Complainant was forced to retire from federal service on December 31, 2010;
2. Complainant was denied a bonus performance pay/cash award for Continuous Process Improvement in 2010.
3. Complainant denied the right to carryover his unused annual leave until January 3, 2011.
4. Complainant did not receive an excellence award that he was nominated for in December 2010.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that the instant claims had already been decided by the Agency and were the subject of a pending appeal in Agency case number DON 10-3579A-0257. The Agency also found that the instant complaint sought to mount a collateral attack upon a proceeding in another forum.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
Previously, on September 14, 2009, Complainant filed a complaint in which he alleged discrimination on the bases of age and in reprisal for prior EEO activity when:
The Agency implemented a modified version of the National Security Personnel System Career Pay Model in 1986, and Complainant's pay has been disparately impacted, as well as his retirement contributions.
That complaint was the subject of EEOC Appeal No. 0120111783 (July 21, 2011), in which the Commission upheld the dismissal of the complaint on the grounds that Complainant and the Agency had resolved the complaint by executing a valid and enforceable Settlement Agreement dated November 15, 2010. That settlement agreement included the following provision:
3. In consideration of the mutual promises contained herein, the Employee agrees to:
a. Withdraw his formal complaint and agree to the dismissal of the formal complaint with prejudice.
b. Retire from Agency employment effective on or before 3 January 2011. The Employee agrees to complete and submit the forms necessary to retire not later than five days after the effective date of this agreement.
We find the settlement agreement encompassed the terms and conditions of Complainant's separation from the Agency, including those matters identified in the instant complaint. We find the Agency properly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same matters that have been resolved by a prior complaint. We further note that in the matter of Carl Robbins v. Dep't of the Navy, Merit Systems Protection Board (MSPB) Docket No. SF-0752-11-0788-I-1 (June 21, 2012), the MSPB found that the same claims raised in the instant EEO complaint were resolved by the November 2010 settlement agreement.
CONCLUSION
Accordingly, we find the Agency properly dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(1). We therefore AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 7, 2012
__________________
Date
2
0120113630
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113630